P L D 2002 Lahore 482

Before Asif Saeed Khan Khosa, J

ABID HUSSAIN and another‑‑‑Petitioners

versus

CHAIRMAN, PAKISTAN BAIT‑UL‑MAL and others‑‑‑Respondents

Writ Petitions Nos. 11242 of 2001 and 6370 of 2002, heard on 2nd August
2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 299, 308 & 53‑‑‑Diyat, Arsh and Daman ‑‑‑Definition‑‑‑Diyat is in fact
an alternate punishment to Qisas and provisions of S.308, P.P.C, confirm
the same ‑‑‑Daman and Arsh are independent punishments in their own
right ‑‑‑Diyat, Arsh and Daman may, however, be correctly described as
punishments which are compensatory in nature but nonetheless they
remain substantive punishments‑‑‑Contention that these punishments are
merely compensation and such compensation is another form of a debt
attracting various provisions of the civil law for its recovery, is not apt.

It is true that the definitions of words Diyat, Arsh and Daman contained
in section 299, P.P.C. describe them as 'compensation' but the fact remains
that section 53, P.P.C. clearly provides that Qisas, Diyat, Arsh and Daman
besides Tazir, death, imprisonment for life, imprisonments both rigorous
and simple, forfeiture of property and fine are 'punishments' to which
offenders are liable under the provisions of the Pakistan Penal Code,
Diyat is in fact an alternate punishment to Qisas and the provisions of
section 308, P.P.C. confirm the same. Likewise Daman and Arsh are
independent punishments in their own right. Diyat, Arsh and Daman
may, however be correctly described as punishments which are
compensatory m nature but nonetheless they remain substantive
punishments. Thus, to portray these punishments as merely
compensation may not be apt and the argument that such compensation
is another form of a debt attracting various provisions of the civil law for
its recovery may also not be acceptable. A substantive 'punishment'
provided for a penal offence has to be undergone by the convict in the
manner provided by the criminal law and there is no escape from it
other than any provided by the criminal law itself.

(b) Penal Code (XLV of 1860)‑‑‑ .

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Mode of payment or recovery of Diyat, Arsh or

Daman ‑‑‑Difference in mode of payment or recovery between Diyat and
Arsh on the one hand and Daman on the other is that Ss.331 & 337‑X,
P.P.C. dealing with payment and recovery of Diyat and Arsh respectively
expressly provide for a grace period of three years to the convict for their
payment but S.337‑Y, P P.C. pertaining to ‑Daman is .silent about any such
period which could well be a result of an inadvertent omission on the
part of draftsman but if the omission in this regard is deliberate then the
reason for the same is not readily discernible‑‑‑Remaining provisions of
Ss.331, 337‑X & 337‑Y, P.P.C. in respect of mode of payment and recovery
of Diyat, Arsh and Daman which are more or less similar, if not
identical‑‑‑Steps provided in Ss.331, 337‑X and 337‑Y, P.P.C. in this regard
recapitulated.

As regards the mode of payment or recovery of Diyat, Arsh or Daman, the

same is provided for by the provisions of sections 331, 337‑X and 337‑Y,
P.P.C. The difference in this regard between Diyat and Arsh on the one
hand and Daman on the other is that sections 331 and 337‑X, P.P.C.
dealing with payment and recovery of Diyat and Arsh respectively
expressly provide for a grace period of three years to the convict for their
payment but section 337‑Y. P.P.C pertaining to Daman is silent about any
such period. This could well be a result of an inadvertent omission on the
part of the Draftsman but if the omission in this regard is deliberate then
the reason for the same is not readily discernible. The remaining
provisions of sections 331, 337‑X and 337‑Y, P.P.C. in respect of the mode
of payment and recovery of Diyat, Arsh and Daman are more or less
similar, if not identical, and the same can be recapitulated through the
following steps which are provided therein:

(i) After the final judgment by the Court (presumably the trial
Court) the convict is to be allowed a period not exceeding three
years, to pay Diyat or Arsh either in lump sum or in instalments.

(ii) if the convict fails to pay Diyat or Arsh or any part thereof
within the above mentioned period allowed to him or he fails to
pay Daman then he may be kept in jail until Diyat, Arsh or Daman
is paid by him in full.

(iii) After failure of the convict to pay Divat or Arsh within the
period allowed to him and non‑payment of Daman by him he may
be released on bail if he furnishes security equivalent to the
amount of Diyat, Arsh or Daman;

(iv) In case of death of the convict before payment of Diyat, Arsh or

Daman the same is to be recovered from his estate.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Constitution of Pakistan (1973), Art. 199‑‑

Constitutional petition‑‑‑Mode of payment or recovery of Diyat, Arsh or
Daman ‑‑‑Validity‑‑‑Most parts of Ss.331,.337‑X & 337‑Y, P.P.C. are replete
with ambiguities, unexplainable obscurities and sometimes downright
absurdities‑‑‑Law governing crime and punishment and dealing with
lives arid liberties of citizens cannot be allowed to hold the field if such
law is not only unreasonable but also capable of working as, an engine of
unjustifiable oppression‑‑‑Reasons illustrated.

Upon a close and critical scrutiny of sections 331, 337‑X and 337‑Y, P.P.C.
one finds that there are certain inherent obscurities and some downright
absurdities engrained therein. It has already been noticed that a grace
period up to three years for making the requisite payment has been
provided for payment of Diyat and Arsh but no such period has been
provided for payment of Daman. It is not clear whether during this grace
period the convict is to remain in jail or on bail. It is also not clear
whether the convict would be kept in jail even where he has made a
partial payment of Diyat or Arsh within the grace, period or not.
According to these provisions the grace period is to start from the date of
the final judgment but it has not been clarified whether the date of the
judgment would be the date of the judgment passed by the trial Court or
the date of the judgment passed by the appellate or revisional Court. The
fate of such grace period, if allowed, during the pendency of appeal or
revision has also been left ambiguous in these provisions. It is. also not
clear when and at what stage the consequences of non‑payment of
Daman shall become operative as it is not provided that the convict shall
be allowed any particular period for payment of Daman before his arrest
for its non‑payment. The question regarding the true import and
meaning of the words "kept in jail" has also been left abegging an
answer. It is not clear whether these words mean that the convict is
already in jail and he would continue to be "kept" there or they mean
that he shall be arrested upon non‑payment of Diyat, Arsh or Daman
after expiry of the period allowed to him for the purpose, if any, and shall
then be kept in jail till the requisite amount is recovered from him. If
such a grace period is to be allowed immediately upon announcement of
the final judgment then it is not clear whether during such period the
convict is to be set free to make arrangements for the requisite amount of
money or he is to be kept in custody and to make arrangement for the
money while confined in jail.

There may be eases wherein, apart from the sentence regarding payment
of Diyat, Arsh or Daman on one or more counts of the Charge, the convict
is also sentenced to death, imprisonment for life or other sentences of
imprisonment on other counts of the Charge. Would such a convict also
be entitled to be set free for a period up to three years upon
announcement of the judgment o r such a convict is to make
arrangements for making the requisite payment while confined in jail, is
also an intriguing question as in the latter situation the concept of the
grace period would lose its essence and spirit and in the former situation
the convict may abscond to save his life or to avoid a prolonged
imprisonment. Releasing the convict on bail implies that he is already in
custody but it may not necessarily be the case because this part of the
relevant statutory provisions becomes operative after expiry of the grace
period allowed to the convict for making the requisite payment. If the
convict is already in custody then this provision does not make any sense
as it throws up a situation that during the period allowed to the convict
for making the requisite payment he is in custody but upon his failure to
make the payment within the said period he may be favoured with bail.
This appears to be nothing but absurd as a convict is not expected to be
rewarded for his failure in that' regard. Apart from that the concession of
bail contemplated by these provisions can be extended only upon
furnishing of 'security' by the convict and not upon furnishing of surety
or personal bond. Security is normally of some valuable property. If such
a convict owns any valuable property valuing equivalent to the amount
of Diyat, Arsh or Daman or somebody is ready to come forward for the
benefit of such a convict by providing such security for the purpose of his
bail then it is, not expected that such a convict would prefer to remain in
jail rather than furnishing of the necessary security for his bail. It
appears that these provisions fail to cater for a convict who is completely
a destitute and who has no one else to furnish such a security for his bail.
Ridiculousness of these provisions is further highlighited by the
provisions relating to recovery of the amount of Diyat, Arsh or Daman
from the estate of a convict who dies without making such payment.
There may be a convict having or leaving no estate at all. In such a case
this pan of the punishment, which was primarily compensatory in
nature, becomes meaningless or loses its relevance to the victim or his
heirs. In case such a convict is on bail before his death, there the damage
may be minimal but one can imagine a possible situation where he is
being "kept in jail" for the requisite payment and after remaining in jail
for the rest of his life he dies in jail without making such a payment and
leaves behind no estate for making a recovery possible therefrom. In
such a case, after serving out his entire substantive sentence of
imprisonment, the convict would be said to have been imprisoned for the
rest of his life for no other reason except hiss poverty and his such
imprisonment is going to be of no real benefit to the victim or his heirs. It
is this aspect of the matter which is the most offensive and unreasonable
in the provisions of sections 331, 337‑X and 337‑Y, P.P. C.

Scrutiny of the provisions of sections 331, 337‑X and 337‑Y, P.P.C. shows
that most parts of the said provisions are replete with ambiguities,
unexplainable obscurities and sometimes downright absurdities. A law
governing crime and punishment and dealing with lives and liberties of
citizens cannot be allowed by High Court to hold the field if such law is
not only unreasonable but also capable of working as an engine of
unjustifiable oppression.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X, 337‑Y & 337‑F‑‑‑Mode of payment or recovery of Diyat,

Arsh or Daman ‑‑‑Validity‑‑‑Islamic dispensation of criminal Justice‑‑
Relevant provisions of Ss.331., 337‑X & 337‑Y, P.P.C. are either
unreasonable or oppressive and thus the same do not appear to be
adjusting well with the principles of Islamic dispensation of criminal
justice.

Section 338-F, P.P.C. requires that while interpreting and applying the
provisions of the "Chapter containing sections 331, 337‑F and 337‑Y, P.P.C.
High Court is to be guided by the injunctions of Islam as laid down in the
Holy Qur'an and Sunnah. Islam is a religion of reason and compassion.
The relevant provisions of the sections 31, 337‑X and 337‑Y. of the
Pakistan Penal Code are either unreasonable or oppressive and. thus, the
same do not appear to be adjusting well with the principles of Islamic
dispensation of criminal justice.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Constitution of Pakistan (1973), Art.14‑‑ Mode of

payment or recovery of Diyat; Arsh or Daman ‑‑‑Inviolability of dignity of
man‑‑‑After serving out his substantive sentence of imprisonment
keeping such a convict in jail for the rest of his life merely because he is
not in a position to pay the requisite amount of compensation to the
victim or his heirs or because he is not in a position to furnish security
for his bail is a punishment which is not only incommensurate .with the
additional compensatory punishment awarded against 'such a convict
but, is also demeaning, debasing, humiliating and offensive to human
dignity‑‑‑Human being cannot be allowed to rot in jail like a vegetable or
to die in an iron cage like an animal merely because, for no fault of his
own he cannot buy his freedom by paying off another human being.

Putting a human being, the best of Almighty Allah's creations, behind the
bars for the rest of his life for no other reason except his impoverished
financial condition, is an idea offensive to the 'dignity' bestowed upon
him by the Creator. The Holy Qur'an requires the believers to hate crime
but not the criminal and to extend mercy and compassion towards his
unfortunate predicament wherever and, however, possible. The
Constitution of the Islamic Republic of Pakistan, 1973 ensures it as a
Fundamental Right guaranteed by Article 14 thereof that the dignity of
man is inviolable and even the worst criminal is entitled to his dignity as
a human being. After serving out his substantive sentence of
imprisonment, keeping such a convict in jail for the rest of his life merely
because he is not in a position to pay the requisite amount of
compensation to the victim or his heirs or because he is not in a position
to furnish the requisite security for his bail is a punishment which is not
only incommensurate with the additional compensatory punishment
awarded against such a convict but is also demeaning, debasing,
humiliating and offensive to human dignity. Human being cannot be
allowed to rot in jail like a vegetable or to die in an iron cage like an
animal merely because, for no fault of his own, he cannot buy his
freedom by making payment to another human being.

(f) Islamic Jurisprudence‑‑‑

‑‑‑‑ Crime and punishment‑‑‑Mode of payment or recovery of Diyat, Arsh

or Daman as provided in Ss.331, 337‑X & 337‑Y, P.P.C.‑‑‑Putting a human
being behind the bars for the rest of his life for no other reason than his
impoverished financial condition is an idea offensive to the 'dignity'
bestowed upon him by God the Creator‑‑‑Islam requires the believers to
hate crime but not the criminals and to spend on prisoners, slaves and
those in debt and for saving their necks and for lessening their burdens
and to extend mercy and compassion towards their unfortunate
predicament wherever and however possible.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X, 337‑Y, 53 & 64 to 71‑‑‑Criminal Procedure Code of (V of

1898), S.544‑A‑‑‑Compensation to the heirs of the person killed‑‑‑Mode of
payment or recovery of Diyat, Arsh or Daman ‑‑‑Default in payment‑‑
Procedure ‑‑‑Provisions of S.544‑A, Cr.P.C. dealing with a matter akin to
that of Diyat, Arsh and Daman as well as to the purposes of Ss.331, 337‑X
& 337‑Y, P.P.C. are not only otherwise clear, reasonable and fair but the
same also fit into the general scheme of laws governing similar
liabilities‑‑ Mechanism and methodology provided in S.544‑A, Cr.P.C. can
be followed in the matter of payment and recovery of Diyat, Arsh or
Daman ‑‑‑Principles.

According to the provisions of section 53, P.P.C. fine is as much a

punishment as Diyat, Arsh or Daman. The provisions of sections 64 to 71,
P.P.C. clearly show that in case of default in payment of fine a convict may
be detained in jail for a specified period but certainly not for an
indefinite term. After expiry of that specified period the liability of the
convict to pay the amount of fine remains intact but he cannot be
imprisoned for that purpose any more. The same appears to be the
position in the civil law in respect of debts or other financial liabilities
even the provisions of section 544‑A Cr.P.C. dealing with a matter akin to
that of Diyat, Arsh and Daman as well as to the purposes of sections 331,
337‑X and 337‑Y, P.P.C. contemplate and provide for a similar approach.
Thus, there is no reason why in the matter of payment and recovery of
Diyat, Arsh or Daman the mechanism and methodology provided in
section 544‑A, Cr.P.C. may not be followed which provisions are not only
otherwise clear, reasonable and fair but also fit into the general scheme
of laws governing similar liabilities.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Zakat and Ushr Ordinance (XVIII of 1980),
S.8‑‑‑Pakistan Bait‑ul‑Mal Act, 1991 (I of 1992), S.4‑‑‑Mode of payment or
recovery of Diyat, Arsh or Daman ‑‑‑Destitute prisoners are entitled to
have assistance from the Zakat Fund or Bait‑ul‑Mal for the purposes of
payment of Diyat, Arsh or Daman.

The State is the modern manifestation of Aqila and in an appropriate

case such an assistance can be provided to a convict from the Zakat and
Ushr funds and Bait‑ul‑Mal. The references from the Holy Qur'an, Hadith
of the Holy Prophet (p.b.u.h.), opinions of various scholars of Islamic law
and instances from the Islamic history show that in an appropriate case
an Islamic State can pay, and has been paying, Diyat on behalf of convicts
who are unable to pay the same on their own. This may be fo~‑manifold
reasons. Firstly, the requisite compensation is meant to satisfy vengeance
of the victim or his heirs and such a payment by the State obviates a
likelihood of reprisal or vendetta and thereby achieves peace in the
society which is one of the primary responsibilities of the State. Secondly,
the State had failed to protect the victim's life or physical safety and it,
thus, cannot avoid sharing the blame for the harm coming to him and
therefore, chipping in by the State towards payment of compensation to
the victim or his heirs is the least that the State can do in such a situation.
And, thirdly being a welfare State, an Islamic 'State is even otherwise
expected to reach out and come to the rescue and assistance of a helpless
citizen in need, be he a convict who has substantially cleaned himself of
the crime by undergoing the entire substantive sentence of
imprisonment passed against him. Section 8 of the Zakat and Ushar
Ordinance, 1980 and section 4 of the Pakistan Bait‑ul‑Mal Act, 1991 speak
of "needy" and "other needy persons" respectively who are entitled to
receive assistance from such sources. There is, thus, no reason why,
especially in view of availability of such instances in the Islamic history, a
destitute convict in the Islamic Republic of Pakistan may not receive
assistance from such sources for the purpose of paying compensation to
the victim or his heirs. It goes without saying that the‑ abovementioned
laws provide for a detailed mechanism to find out whether the request
for assistance made by a' person is genuine and bona fide or not. If the
State pays the requisite compensation on behalf of the culprit on account
of his financial inability in that regard then after the said culprit's release
the State should make him undergo a compulsory service on a project of
public welfare so that he is gainfully employed there and, thus, the
amount of money spent by the State for his benefit in the matter of
payment of compensation is ultimately recovered from him by the State
appears to be a suggestion which needs consideration by the State. This
suggestion not only solves the convict's immediate problem qua securing
his release from prison but it also protects his self respect besides
ensuring recovery of public money spent for the benefit of such a
convict. The State is already spending a lot of money on boarding and
lodging of such prisoners and there may be cases where the State may
ultimately end up spending more on keeping a prisoner in jail than
paying up such prisoner's liability towards the victim or his heirs. This
aspect of the matter may also be taken note of by the concerned
authorities while considering a request made by a convict for financial
assistance for the purpose of paying compensation to the victim or his
heirs or for paying fine which is payable to the State itself.

(i) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 331, 337‑X & 337‑Y‑‑‑Criminal Procedure Code (V of 1898),

S.544‑A‑‑‑Constitution of Pakistan (1973), Arts. 9, 14, 4 & 199‑‑
Constitutional petition‑‑‑Mode of payment or recovery of Diyat, Arsh or
Daman ‑‑‑Validity‑‑‑Provisions of Ss.331, 337‑X & 337‑Y, P.P.C. pertaining to
payment and recovery of Diyat, Arsh and Daman are violative of the
Fundamental Rights guaranteed by Arts. 9 & 14 of the Constitution
regarding life and liberty of citizens and dignity of man besides being
offensive to the provisions of Art.4 of the Constitution pertaining to life
and liberty of citizens‑‑‑High Court declared the provisions of Ss.331,
337‑X & 337‑Y, P.P.C., insofar as the same prescribe the mode of payment
and recovery of Diyat, Arsh, Daman and treatment of the convicts for the
same to be void on account of their inconsistency with the Fundamental
and Constitutional Rights‑‑‑Consequent to such ‑declaration general law
relating to Diyat, Arsh and Daman contained in Pakistan Penal Code shall
remain intact but the provisions of Ss.331, 337‑X & 337‑Y, P.P.C. insofar as
the same prescribe the mode of payment and recovery of Diyat, Arsh and
Daman and treatment of the convicts for the same shall forthwith cease
to exist‑‑ High Court being conscious of the fact that the declaration by
the Court may create a vacuum in the Pakistan Renal Code regarding the
mode of payment and recovery of Diyat, Arsh and Daman and treatment
of the convicts for the same observed that such a vacuum is quite capable
of being adequately filled by the provisions of S.544‑A, Cr.P.C. which not
only deal with similar matters but the same are quite just, fair and
reasonable besides being in accord with the remaining body of laws
dealing with similar matters‑‑‑High Court, therefore, further declared
that till such time the relevant Legislature enacts any provision or
provisions to substitute for the provisions of Pakistan Penal Code struck
down, matters regarding the mode of payment and recovery of Diyat,
Arsh and Daman and treatment of the convicts for the same shall be
dealt with and handled by the concerned Courts and authorities in
accordance with the provisions of 5.544‑A, Cr.P.C. with necessary
adaptations, if required‑‑‑All those convicts .who are at present detained
in prisons in the Province of the Punjab only on account of their failure
to pay Diyat, Arsh or Daman shall be immediately released from prisons
if they have already undergone imprisonment for a period of six months
on account of non‑payment of Diyat, Arsh or Daman while the other
convicts in prisons placed in similar situation shall also be dealt with
accordingly upon maturity of their cases for such release‑‑‑Despite the
release of such convicts in view of S.544‑A, Cr.P.C. their liability regarding
payment of Diyat, Arsh or Daman shall remain intact and the amount
due from them shall be recoverable as arrears of land revenue‑‑‑Destitute
convicts, at any stage of the matter shall be entitled to apply before the
concerned Authorities for assistance from the Zakat Fund or Bait‑ul‑Mal
towards payment of Diyat. Arsh, Daman or fine and the concerned
authorities shall be obliged to consider and take decision on all such
requests air accordance with the relevant law and procedure‑‑‑High
Court directed the office of the Court to send copies of the judgment to
concerned quarters for compliance‑-Principles.

The provisions of sections 331, 337‑X and 337‑Y, P.P.C. pertaining to the
mode of payment and recovery of Diyat, Arsh and Daman and treatment
of the convicts for the same are replete with ambiguities, unexplainable
obscurities and downright absurdities. Articles 4 and 9 of the
Constitution of the Islamic Republic of Pakistan, .1973 enjoin that no
person shall be deprived of his life or liberty save in accordance with
law. These provisions of the Constitution obviously presuppose that a law
affecting life or liberty of a person has to be reasonable, clear, fair and
just. A law governing crime and punishment and dealing with lives and
liberties of citizens cannot be allowed' to hold the field if such law is not
only unreasonable, obscure and, at times, absurd but also capable of
working as an engine of unjustifiable oppression. The abovementioned
provisions of the Pakistan Penal Code are thus violative of the
Fundamental Rights guaranteed by Articles 9 and 14 of the Constitution
regarding life and liberty of citizens and dignity of man besides being
offensive to the provisions of Article 4 of the Constitution pertaining to
life anti liberty of citizens. The provisions of sections 331, 337‑X and
337‑Y, P.P.C. in so far as they prescribe the mode of payment and recovery
of Diyat, Arsh and Daman and treatment of the convicts for the same are,
therefore, declared to be void on account of their inconsistency with the
above mentioned Fundamental and Constitutional Rights.

As a consequence of the declaration made above the general law relating

to Diyat, Arsh and Daman contained in the Pakistan Penal Code shall
remain intact but the provisions of sections 331, 337‑X and 337‑Y, P.P.C. in
so far as they prescribe the mode of payment and recovery of Diyat, Arsh
and Daman and treatment of the convicts for the same shall forthwith
cease to exist.

Despite highest judicial recognition of the obscurities in the said

provisions of the Pakistan Penal Code the recommendations made by the
Peshawar High Court in the year 1998 and by the Supreme Court of
Pakistan in the year 2000 have not been attended to so far either by the
Federal Government or by the Council of Islamic Ideology and nothing
has been done to date to solve the problems created by the said
provisions. The Federal Government has even failed to frame the Rules in
this regard contemplated by section 338‑G,.P.P.C. so as to inject some
rationality into the relevant provisions. In this backdrop of apathy on the
part of the concerned quarters High Court cannot leave the affected
citizens in the lurch and allow them to keep on suffering on the basis of
laws which are themselves defective. The declaration made by High
Court may create a vacuum in the Pakistan Penal Code regarding the
mode of payment and recovery of Diyat, Arsh and Daman and treatment
of the convicts for the same but such a vacuum is quite capable of being
adequately filled by the provisions of section 544‑A, Cr.P.C. which not only
deal with similar matters but the same are quite just, fair and reasonable
besides being in accord with the remaining body of laws dealing with
similar matters.

If a statute contains two provisions dealing with somewhat similar

situations then the Court can usefully utilize and apply the principles
contained in the one such 'provisions while dealing with the other. The
Pakistan Penal Code and the Code of Criminal Procedure are even
otherwise statues which complement and supplement each other in most
respects, and are generally perceived as counterparts in the system of
criminal justice in Pakistan. Thus, if a makeshift substitute is available in
the Code of Criminal Procedure for the provisions of the Pakistan Penal
Code which have been struck down there is no reason why the said
substitute available in the Code of Criminal Procedure may not be
utilized for temporarily filling up the vacuum. High Court, therefore,
declared that till such time the relevant Legislature enacts any provision
or provisions to substitute for the provisions of the Pakistan Penal Code
struck down by the ‑High Court, matters regarding the mode of payment
and recovery of Diyat, Arsh and Daman and treatment of the convicts for
the same shall be dealt with and handled by the concerned Courts and
authorities in accordance with the provisions of section 544‑A, Cr.P.C.
with necessary adaptations, if required.

As a necessary corollary to and consequence of what has been held

above and keeping in view the provisions of section 544‑A, Cr.P.C. which
contemplate a maximum period of 6 months' imprisonment in case of a
convict's failure to pay compensation to the victim or his heirs, High
Court directed that all those convicts who are at present being detained
in prisons in the Province of the Punjab only on account of their failure
to pay Diyat, Arsh or Daman shall be immediately released from prisons
if they have already undergone imprisonment for a period of six months
on account of non‑payment of Diyat, Arsh or Daman. The other convicts
to prisons placed in a similar situation shall also be dealt with
accordingly upon maturity of their cases for such release. It is, however,
clarified that, to view of the provisions of section ‑544‑A, Cr.P.C., despite
their release from prisons the liability of these convicts regarding
payment of Diyat, Arsh arid Daman shall remain intact and the amount
due from them shall be recoverable from them as arrears of land
revenue. 1t is further clarified that at any stage of the matter destitute
convicts shall be entitled to apply before the concerned authorities for
assistance from the Zakat Fund or Bait‑ul‑Mal towards payment of Diyat,
Arsh, Daman or tine and the concerned authorities shall be obliged to
consider and take decision on all such requests in accordance with the
relevant law and procedure.

The Office of High Court was directed to send copies of judgment to the
Superintendents of all the Prisons in the Province of the Punjab for
immediate compliance and implementation of the judgment. The Office
shall also send copies of the judgment to the Federal and. Provincial
Secretaries of the respective Law Departments, the Provincial Home
Department and all the District and Sessions Judges in every District of
the Province of the Punjab who shall supply a copy of judgment to all the
Presiding Officers of all the Criminal Courts in their respective Districts
for their information.
Al‑Qur'an: Sura 95, Verse 4; Sura 17, Verse 70, Sura 76; Verse 8, Sura 2;
Verse 177, Sura 9, Verse 60; Sura Tauba, Verse 60; Sura 17, Verse 70; Sura
95, Verse 4; Sura 76. Verse 8; Sura 2, Verse 177; Sura 6, Verse 54; Sura 9,
Verse 60; Sura 70, Verse 24; Sura 56, Verse 73; Sura 3, Verse 17; Sura 2,
Verse 233; Sura 2, Verse 286; Sura 4, Verse 83, Sura 6, Verse 152; Sura 7,
Verse 42; Sura 23. Verse 62, Sura 65, Verse 7; Sura 92, Verse 7, Sura 2 Verse
185, Sura 94, Verses 5, 6; In re: Suo Motu Constitutional Petition 1994
SCMR 1028; Abdul Rahim and 2 others v. Messrs United Bank Limited
PLD 1997 Kar. 62; Syed Shaffat Hussain v. Kamran Khokhar 2000 MLD
801: Mst. Shirin Masood v. Malik Nasim Hassan, Judge Family Court and
others ,1985 CLC 2758; Major Feroze Din Khan and others v. Sh
Muhammad Amin PLD 1967 Lah. 966; Muhammad Afzal alias Seema v.
The State 1999 SCMR 2652; Gulab v. The State 1997 PCr.LJ 193;
Muhammad Kamal v. The State 1998 PCr:LJ 1781; Muhammad Zafar v.
The State 2001 YLR 533; Allah Ditta v. The State PLD 2002 Lah. 406; Fazal
Hussain v. The State 2002 PCr.LJ 1256; Tafheem‑ul‑Qur'an, Vol. I, Surah
AI‑Baqara, Verse 177 by Maulana Abul A'la Maudoodi; Hudood, Qisas.
Diyat wa Tazeerat, pp.43, 198, 373, 400 by Dr. Tanzil‑ur‑Rehman; Islami
Qawaneen‑e‑Qisas wa Diyat, pp. 16, 87, 125 by Mian Masood Ahmad
Bhutta; Islam Ka Faujdhri Qanoon, Vol.. 1,'pp.157, 172, 257 by Abdul
Qadir Auda Shaheed; Tadabar‑i‑Qur'an, Vol. 1, p.431 by Amin Ahsan
Islahi; . Mishkat‑ul‑Masahib, Vol. II, p.1163, English Translation by Alhaj
Maulana Fazal‑ul‑Qur'an; Qisas our Diyat, pp.155, 156, 157, 248 by Ch.
Altaf Hussain; Bada‑i‑Sana, Vol. VII, pp.561, 63, 564 translated by Prof.
Khan Muhammad Chawla; Constitutional Foundations of Pakistan
authored by Dr. Safdar Mahmood; Miss Benazir Bhutto v. Federation of
Pakistan and another PLD 1988 SC 416; Haji Nizam Khan v. Additional
District Judge, Layllpur and others PLD 1976 Lah. 930; Mst. Fazal Jan. v.
Roshan Din' and 2 others PLD 1990 SC 661; Mian Muhammad Nawaz
Sharif v. President of Pakistan and others PLD 1993 SC 473; Zohra and 5
others v. The Government of Sihdh, Health Department through its
Secretary, Sindh Secretariat, Karachi and another PLD 1996 Kar. 1; The
Employees of the Pakistan Law Commission, Islamabad v. Ministry of
Works and 2 others 1994 SCMR 1548; Sharaf Faridi and 3 others v. The
Federation of Islamic Republic of Pakistan through Prime Minister of
Pakistan and another PLD 1,989 Kar. 404; Mumtaz Ali 'Bhutto and
another v. The Deputy Martial Law Administrator, Sector 1, Karachi and 2
others PLD 1979 Kar. 307; Federation of Pakistan and another v. Malik
Ghulam Mustafa Khar PLD 1989 SC 26; Iii re: Juvenile Jail, Landhi,
Karachi. 1990 PCr. LJ 1231; Sh. Liaquat Hussian and others v. Federation
of Pakistan through Ministry of Law, Justice and Parliamentary Affairs,
Islamabad and others PLD 1999 SC 504; Muhammad Riaz v. District
Collector, Okara PLD 1997 Lah. 680; Federation of Pakistan v. Gul Hassan
PLD 1989 SC 633; Muhammad Afzal alias Seema .v. The State 1999 SCMR
2657; The Bank of Punjab v. Administrator‑General, Central‑ Zakat
Administration; Islamabad and others PLD 1994 Lah. 207; Bada‑i‑al‑Sana,
Vol. VII, translated by Prof. Khan Muhammad Chavvla and published by.
Markaz‑e‑Tehqeeq, Research Cell, Diyal Singh Trust Library, Nisbat Road,
Lahore; The Islamic Criminal Justice published in 1979 by Oceana
Publication Incorporation, New York, U.S.A., p.205; Ideal Muslim, p.262 by
Dr. Muhammad Alt‑al‑Hashmi, Sahib‑ul‑Bukhari, Hadith Nos.2298, 3560,
6898; Sahib‑ml‑Bukhari, Haidth No.6125; Al‑Mawafiqat p.15; Begum
Rachida Patel v. Federation of Pakistan PLD 1989 FCC 95;
Sahib‑ul‑Bukhari, Hadith No.4781; Sunan Abu Uaud, Second Vol., Chap.
513, Hadith No.1184, p.465; Mishqat, Hadith No.1733, p.386; Islam Ka
Faujdari Qanoon, Vol. 2, p.61 by Abdul Qadir Auda Shaheed; Fiqah Hazrat
Umar, p.317 by Dr. Muhammad Rawas Kalaji; Qisas‑,o‑Diyat, pp:60, 61
published in 1990 by Adara‑e‑Tehqeeq‑e‑Islami, Islamabad; Hudood,
Qasas, Diyat Tazirat, pp.203 to 207; Fiqah Hazrat Abu Bakar, p.132 by
Dr.Muhammad Rawas Kalaji; Al‑Fiqah, (Fiqah‑e‑Jafaria), Kitab‑ul‑Diyat by
Muhammad Al‑Hussaini‑al‑Sherazi, Tehreer‑ul‑Wasila; Vol.4, p.437 by
Imam Khomeni; Shara‑i‑al‑Islam fi Masail‑ul‑Halal‑i‑Wal Haram by Abdul
Qasim Najmuddin Jafar bin Hassan; Sahib‑Muslim, Vol. 2, Haidth No. 137
published by Sheikh Ghulam Ali & Sons; Al‑Faroa Minal Kafi, p.360 by
Al‑Kulaini Al‑Razi, Sahih Muslim Sharif, pp.295 to 297;
Mishqat‑ul‑Masahib, Vol :. 3, p.169; The Mejelle, pp.5 to 7, Principles Nos.
17, 18, 20', 21, 30, 31 and 32, published by PLD Publishers, Lahore; In re:
Suo Motu Constitutional Petition 1994 SCMR 1028 and Maqsood v. Ali
Muhammad and another 1971 SCMR 657 ref.

(j) Interpretation of statutes‑

‑‑‑‑ If a statute contains two provisions dealing with somewhat similar

situations then the Court can usefully utilize and apply the principles
contained in one such provision while dealing with the other.

(k) Penal Code (XLV of 1860)‑‑‑

‑‑‑Preamble‑‑‑Criminal Procedure Code (V of 1898), Preamble‑‑‑Pakistan

Penal Code and Criminal Procedure Code are statutes which complement
and supplement each 'other in most respects and are generally perceived
as counterparts in system of criminal justice in Pakistan.

M.D. Tahir, for Petitioners.

Kh. Saeed‑uz‑Zafar, Dy. A.‑G., Ishfaq Ahmad Chaudhry, Law Officer on

behalf ‑of the A.‑G., Punjab and Raja Abdul Qavvum, Law Officer for the
Inspector‑General, Prisons, Punjab for Respondents

Syed Afzal Haider, Dr.. Riaz‑ul‑Hassan Gilani, Syed Shabbar Raza Rizvi
and Umar Ata Bandial as Amicue Curiae.

Dates of hearing: 27th, 28th, 29th May; 3rd; 5th, 6th, 11th June; 12th, 18th,
22nd July and 2nd August, 2002.

JUDGMENT
Putting a human being, the best of Almighty Allah's creations (Al Qur'an:
Sura 95: Verse 4), in an iron cage for the rest of his life for no other
reason than his abject poverty is an idea abhorrent to the 'dignity'
bestowed upon him by the Creator (Sura 17: Verse 70). When the Holy
Qur'an enjoins upon the believers to spend on prisoners, slaves and those
in debt and for saving their necks and for lessening of their burdens
(Sura 76: Verse 8, Sura 2: Verse 177 and Sura 9: Verse 60) it sends an
unmistakable message that what is to be hated is crime and not the
criminal and the unfortunate predicament of such a human being is to be
visited with compassion and mercy wherever and however, possible. It is
manifestly to this backdrop that the Constitution of the Islamic Republic
of Pakistan, 1973 ensures it as a Fundamental Right guaranteed by Article
14 thereof that the dignity of man is inviolable, In the case of In re: Suo
Motu Constitutional Petition (1994 SCMR 1028) the Hon'ble Supreme Curt
of Pakistan had unequivocally, declared that even the worst criminal is
'entitled to his dignity as a man and the crime committed by him does not
denude him of such a right which is referable to his belonging to the
human race and not to his belonging to the community of criminals.

2. The plight of Abid Hussain petitioner, one such unfortunate human

being and citizen, is the subject‑matter of Writ Petition No. 11242 of 2001
filed through Mr. M.D. Tahir, Advocate. The same learned Advocate has
also tiled Writ Petition No.6370 of 2002 before this Court highlighting the
unfortunate predicament of many others who, like Abid Hussain
petitioner, are facing the same ordeal arid don't even have the means to
approach this Court through a proper petition. I have heard both these
petitions together as they involve common questions of law and I
propose to decide them together through the present consolidated
judgment.

3. Abid Hussain petitioner was convicted for an offence under section

316 of the Pakistan Penal Code, 1860 (hereinafter referred to as P.P.C.)
vide judgment dated 3-5‑1994 handed down by the learned Additional
Sessions Judge, Bhalwal, District Sargodha and was sentenced to
imprisonment for life and to pay a sum of Rs.3,50,000 to the heirs of the
victim by way of Diyat. The said petitioner, according to the learned
counsel for the petitioner, has already served out his substantive
sentence of imprisonment but he is presently being detained at the
Central Jail, Mianwah only on account of his failure to pay the requisite
amount of Diyat. According to the learned counsel for the petitioner the
said petitioner has absolutely no means to pay the requisite amount of
Diyat and so far none of his relatives, friends or others have come
forward to pay the same on his behalf and, thus, as per the present
interpretation of the provisions of section 331., P.P.C., Abid Hussain
petitioner is to languish in jail for the rest of his life till he dies or till
somebody pays the amount of Diyat on his behalf. Mr. M.D. Tahir,.
Advocate has also referred to the plight of one Feroze son of Sarja who
was convicted for an offence under section 306, P.P.C. vide judgment
dated 18‑2‑1991 rendered by the learned Sessions Judge, Sargodha and
was sentenced under section 308, PT.C. to rigorous imprisonment for ten
years and to pay a sum of Rs.2,75,000 to the heir of the victim by way of
Diyat. The said convict has also already served out his substantive
sentence of imprisonment anal presently he is being detained in the
Central Jail, Mianwali only on account of non‑payment of the amount of
Diyat, According to Mr.. M.D. Tahir, Advocate the said convict, on account
of his extreme poverty, has no means to pay the amount of Diyat and
nobody has so far volunteered to pay the same on his behalf. A reference
in this regard has been made to the documents appended with Writ
Petition No.6370 of 2002 as Annexures B and C to point out that even the
father of that convict is a destitute who is receiving assistance, from the
local Zakat and Ushr Committee for his own survival and sustenance. Mr.
M.D. Tahir, Advocate had informed this Court at the initial stage of
hearing of these petitions that his own personal visits to various jails in
the Province of the Punjab had revealed that scores of other convicts
were also languishing in various jails of the Province whose tales of woes
in this regard stemming' from their extreme poverty were no different
from those of the above mentioned. Abid Hussain petitioner and Feroze
son of Sarja.

4. On 16‑4‑2002 this Court had admitted Writ Petition No.'6370 of 2002 to

regular hearing and it was observed in the order passed on that date that
the following points, inter alia, required consideration:

"(i) Whether a person can be imprisoned for more period than is

prescribed for an offence?

(ii) Whether such a person is also to be punished for his poverty besides
the offence he has committed?

(iii) Whether there is any way or any legal dispensation whereby

payment can be made for such prisoners from any fund for securing
their release?

(iv) Whether the relevant law in this regard which requires such a
prisoner to be kept in jail for an indefinite period is in consonance with
Islamic dispensation of justice?

(v) Whether the law in this regard is unreasonable and oppressive and
the same needs to be struck down or suitably amended?

(vi) Whether the Zakat or Bait‑ul‑Mal Funds can be utilized for the benefit
of such prisoners who are otherwise adjudged criminals?"

Through the same order the office of this Court was directed to issue
notice to the learned Attorney‑General for Pakistan and the learned
Advocate- General, Punjab and Dr. Syed Riaz‑ul‑Hassan Gilani, Syed Afzal
Haider, Syed Shabbar Raza Rizvi and Mr. Umar Ata Bandial, Advocates
were requested to assist the Court as amicus curiae.

5. On the subsequent dates of hearing of these petitions I had the

privilege of, hearing at length not only the learned counsel for the
petitioner but also the learned Deputy Attorney‑General, the learned Law
Officer appearing on behalf of the learned Advocate‑General, Punjab and
the learned count appearing as amicus curiae who assisted the Court
very ably. A report was also submitted before the Court by the
Inspector‑General of Prisons, Punjab pointing out that as on 23‑5‑2002 as
many as 145 prisoners were lodged in different jails in the Province of
the Punjab who have already served out their substantive sentences of
imprisonment and are being detained in jail only on account of
non‑payment of Diyat, Arsh or Daman. Likewise 64 prisoners were in
captivity merely because they have so far failed to pay fines imposed
upon them by different Courts although they have already served out
their substantive sentences of imprisonment. The report further showed
that for keeping one prisoner in jail and average sum of Rs.15.51 is spent
on his diet and more on his maintenance by the Government per day.

6. In support of these petitions it has passionately been argued by

Mr.M.D. Tahir, Advocate that poverty of a citizen is not per se an offence
and if a convict has been punished, alongwith a sentence of
imprisonment, to pay a sum of money to the victim or his heirs then,
after serving out his entire substantive sentence of imprisonment, he
cannot be detained in jail for an indefinite period or for the rest of his life
if he is incapable of paying the requisite amount of money. He has
maintained that a convict's poverty is a circumstance beyond his
personal control and in such a situation the State. through the Zakat
Fund or Bait‑ul‑Mal, should pay such an amount on behalf of the convict.
According to him such an approach shall not only satisfy the victim's or
his heirs' claim in that regard but shall also bring about peace and
harmony in the society achievement of which is a basic duty of the State.

7. Kh. Saeed‑uz‑Zafar, the learned Deputy Attorney‑General, has

maintained that Diyat, Arsh and Daman are more of compensation than
punishment and the provisions of sections 331, 337‑X and 337‑Y, P.P.C. are
to be read in conjunction with those of section 544‑A of the Code of
Criminal Procedure, 1898 (hereinafter referred to as Cr.P.C.) which deals
with an identical situation, i.e. payment of compensation to the victim or
his heirs. According to him the word "may" mentioned in sections 331(2),
337‑X(2) and 337‑Y(2), P.P.C. and the words "unless for reasons to be
recorded in writing it otherwise directs" appearing in section 544‑A(1),
Cr.P.C. and "may further order" figuring in section 544‑A(2), Cr.P.C‑
unmistakably reflect the intention of the Legislature that incarceration of
a. convict upon his failure or inability to pay such compensation to the
victim or his heirs is not mandatory. He has categorically maintained
that, while "reading down" the provisions of sections 331, 337‑X and
337‑Y, P.P.C. se as to harmonize them with the provisions of section 544‑A,
Cr.P.C., it should be understood and interpreted that failure or inability of
a convict to pay the requisite compensation does not have to necessarily
entail his incarceration till he pays up the said amount and in an
appropriate case a Court, after holding an inquiry in that regard, may
refuse to pass an order regarding detention of such a convict in jail till
recovery of such amount from him and, in such a situation, the Court
may order that such an amount would be recoverable from the convict as
arrears of land revenue. The learned Deputy Attorney‑General has gone
on to maintain that detention of a citizen in jail for an indefinite period
only because of paucity of funds available with him to pay up a financial
liability is indeed debasing of human dignity and it militates against the
provisions of Article 14 of the Constitution. According to him even under
the civil law a person incurring a financial liability is to be detained for
the purposes of recovery only where he is capable of meeting that
liability and not otherwise. He has lastly maintained that, as is evident
from the report submitted by the Inspector-General of Prisons, Punjab,
the State is already spending a lot of money on boarding and lodging of
the prisoners and there may be cases where the State may ultimately end
up spending more on keeping in prisoner in jail than paying up such
prisoner's liability towards the victim or his heirs. The learned Deputy
Attorney‑General has referred to the case of Abdul Rahim and 2 others v.
Messrs United Bank Limited (PLD 1997 Karachi 62) to highlight that while
interpreting a law a Court is to avoid a result which is oppressive. A
reference has also been made by him to the provisions of sections 51 and
57 of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.)
and to the case of Syed Shaffat Hussain v. Kamran Khokhar (2000 MLD
801) to point out that in civil cases detention of a defaulter is to be
ordered only where certain conditions are met and where he has the
means to pay up his liability. The case of Mst. Shirin Masood v. Malik
Nasim Hassan, Judge Family Court and others (1985 CLC 2758) and Major
Feroze Din Khan and others v. Sh. Muhammad Amin (PLD 1967 Lah. 966)
have also been referred to by him in this context. He has also brought it
to the notice of the Court that in the case of Muhammad Afzal alias
Seema v. The State (1999 SCMR 2652) the Hon'ble Supreme Court of
Pakistan has already held that before passing an order against a minor
convict regarding payment of Diyat the trial Court has to hold an inquiry
regarding his capability or financial capacity to pay Diyat. He has also
informed the Court that the order passed by this Court on 25‑5‑2001 in
Criminal Miscellaneous No.96‑M of 2001 in Criminal Appeal No.737 of
1996 has already opened a door for payment of Diyat from the
Bait‑ul‑Mal for the benefit of a convict who is destitute and incapable of
meeting his liability in that regard on his own. A reference has also been
made by him to the case of Gulab v. The State (1997 PCr.LJ 193) wherein
such a convict had been admitted to bail, so as to facilitate him to arrange
for funds to pay Diyat. The learned Deputy :Attorney‑General has lastly
referred to the case of Muhammad Kamal v. The State (1998 PCr. LJ 1781)
to point out that a recommendation has already been made by the
Hon'ble Peshawar High Court to the Federal Ministry of Law to remove
the anomalies and confusion in all these regards.

8. Mr. Ishfaq Ahmad Chaudhry, Advocate, the learned Law Officer

appearing on behalf of the learned Advocate‑General, Punjab, has by and
large taken the same stand as taken by the learned Deputy
Attorney‑General. He has, however, maintained that Diyat, Arsh or
Daman are not debts but are punishments and the provisions of section
544‑A, Cr.P.C. appear to be more humane and appropriate for exaction of
such. a punishment than the provisions of sections 331, 337‑X and 337‑Y,
P.P.C. He has also drawn this Court's attention to the cases of Muhammad
Zafar v. The State (2001 YLR 533) and Allah Ditta v. The State (PLD 2002
Lahore 406) wherein a direction had been issued by this Court that the
relevant compensation to the victims or their heirs should be paid from
the Bait‑ul‑Mal for the benefit of the destitute convicts in those cases and
also to the case of Fazal Hussain v. The State (2002 PCr.LJ 1256) wherein
on the basis of a compromise between the convict and the major heirs of
the victim the share of Diyat payable by the convict to the minor heirs of
the victim had been waived by this Court. Mr. Ishfaq Ahmad Chaudhry
has, however, maintained with respect that the orders passed in those
cases had not been proceeded by any meaningful discussion about legal
permissibility or otherwise of adoption of such a course by the Court.

9. Syed Shabbar Raza Rizvi, Advocate appearing as amicus curiae, has

addressed elaborated arguments from diverse angles including legal,
Islamic and Constitutional. On the legal plane he has maintained that
Diyat, Arsh or Daman are not just compensation to the victim or his heirs
but are substitute punishment for Qisas as is manifest from the
provisions of section 308, P.P.C. According to him the provisions of
sections 331 and 337‑X, P.P.C, contemplate a grace period of three years to
be allowed to a convict to pay up his liability in that regard failing which
he is either to be kept in jail or he is to be admitted to bail till he pays up
or dies in which case the requisite amount is to be recovered from his
estate. He has, with reference to the provisions of section 338‑F, P.P.C.,
pointed out that this, matter is to be applied and interpreted by this Court
while being guided by the Injunctions of Islam as laid down in the Holy
Qur'an and Sunnah.
10. While dilating upon the Injunctions of Islam in this regard Mr. Rizvi
has extensively referred to various sources of Islamic law, including the
Holy Qur'an, the Sunnah of the Holy Prophet (p.b.u.h.) and writings of
various scholars to maintain as follows:‑‑

(a) The object of Qisas and Diyat laws is to satisfy the victim or his
heirs so as to bring about peace in the society by quenching their
thirst of vengeance and, in the absence of Qisas, the victim or his
heirs are to be compensated in financial terms through payment of
Diyat.

(b) If the convict is sourceless and his relatives also have no means
to pay the liability on his behalf then Diyat can be exacted from the
Aqila (the convict's clan or tribe) so that the blood of the victim
does not go waste and vengeance of the heirs of the victim is
satisfied through financial compensation. With the growing
irrelevance of clans and tribes the State is the modern
manifestation of Aqila.

While making these submissions the learned amicus curiae has

extensively quoted from the following books:‑‑

"Tefheem‑ul‑Quran: Volume I, Surah Al‑Baqara, Verse 177 by Maulana

Abul A'la Maudoodi.

Hadood, Qisas, Diyat wa Tazeerat: Pages 43, 198; 373 and 400 by Dr.
Tanzil‑ur‑Rehman, published by Qanuni Kutab Khana, Katcheri
Road, Lahore.

Islami Qawaneen‑e‑Qisas wa Diyat: Pages 16, 87 and 125 by Mian

Masood Ahmad Bhutta, published in 1991 by Kashmir Law Times,
Temple Road, Lahore.

Islam Ka Faujdari Qanoon: Volume I, pages 157, 162 and 257 by

Abdul Qadir Auda Shaheed, published in 1979 and 2000 by the
Islamic Publications Limited, Shah Alain Market, Lahore.

Tadabar‑i‑Quran: Volume I, page, 431 by Amin Ahsan Islahi,

published by Faran Foundation, Lahore.

Mishkat‑ul‑Masahib: Volume II, page 1163 English translation by

Alhaj Maulana Fazal‑ul‑Quran, published by the Law Publishing
Company, Katcheri Road, Lahore.

Qisas our Diyat: pages 155, 156, 157 and 248 by Ch. Altaf Hussian,
published in 1981 by Sang‑e‑Meel Publications, Lahore.

Bada‑i‑al‑Sana: Volume VII, pages 561, 563 and 564, translated by

Prof. Khan Muhammad Chawla, published by Markaz‑e‑Tehqeeq,
Research Cell, Diyal Singh Trust Library, Nisbat Road, Lahore.

11. For his argument based upon the Constitution Mr. Rizvi has referred
to the provisions of Articles 3, 37, 38 and 156 of the Constitution of the
Islamic Republic of Pakistan, 1973 as well as to the speech delivered by
then Law Minister Mr,. Abdul Hafeez Prizada which presenting the Draft
Constitution before the National Assembly. Mr. Rizvi has maintained that
the Constitution envisages a Welfare State; Article 3 visualizes
elimination of all forms of exploitation; Article 37(a) provides that the
State shall promote the economic interests of the backward classes;
Article 37(d) requires the State to ensure inexpensive and expeditious
justice; Article 38(a) mandates that the State shall secure the well‑being of
the people; and Article 38(d) contemplates that the State shall provide
basic necessities of life, such as food, clothing, housing, education and
medical relief for all such citizens as are permanently or temporarily
unable to earn their livelihood on account of infirmity, sickness or
unemployment. Keeping in view these Constitutional requirements,
according to Mr. Rizvi, the convicts of the type under discussion in the
present petitions do qualify for financial assistance by the State which is
under a Constitutional obligation to reach out to such citizens for
amelioration of their financial handicap which is not of their own
making.

12. Mr. Rizvi has further argued that some Constitutional and
Fundamental Rights of the prisoners under discussion can also be
pressed into service by this .Court and appropriate directions rah be
issued by the Court to the relevant functionaries of the State for
enforcement of such rights so as to provide the necessary relief to such
prisoner. In this context he has referred to Articles 4, 9, 14 and 25 of the
Constitution. Article 4 deals with an inalienable right to liberty in
accordance with the law, Article 9 provides protection against unlawful
deprivation of life or liberty, Article 14 pertains to inviolability of dignity
of man and Article 25 ensures equality before law and equal protection
of law. The learned counsel has, in this regard, referred to page 812 of the
book titled Constitutional Foundations of Pakistan authored by Dr. Safdar
Mahmood, published by the Jang Publishers, Lahore in December, 1989
and to the cases of Miss Benazir Bhutto v. Federation of Pakistan and
another (PLD 1988 SC 416 at page 490), Haji Nizam Khan. v. Additional
District Judge, Lyallpur and others (PLD 1976 Lahore 930 at page 979),
Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1990 SC 661), Mian
Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993
SC 473 at page 557), Zohra and 5 others v. The Government of Sindh,
Health Department through its Secretary, Sindh Secretariat, Karachi and
another (PLD 1996 Karachi 1), The Employees of the Pakistan Law
Commission, Islamabad v. Ministry of Works and 2 others (1994 SCMR
1548), Sharaf Faridi and 3 others v. The Federation of Islamic Republic of
Pakistan through Prime Minister of Pakistan and another (PLD 1989
Karachi 404 at page 442), Mumtaz Ali Bhutto and another v The Deputy
Martial Law Administrator, Sector 1, Karachi and 2 others (PLD 1979
Karachi 307 at page 357), Federation of Pakistan and another v. Malik
Ghulam Mustafa Khar (PLD 1989 SC 26 at page 53), In re: Juvenile Jail,
Landhi, Karachi (Suo motu notice) (1990 PCr.LJ 1231) and Sh. Liaquat
Hussain and others v. Federation of Pakistan through Ministry of Law,
Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC
504).

13. Mr. Umar Ata Bandial, Advocate, also appearing as amicus curiae, has
maintained that Diyat, Arsh or Daman, in addition to the sentence passed
against a culprit for the offence committed by him, are basically different
forms of compensation to the victim or his heirs which, in terms of the
provisions of sections 331, 337‑X and 337‑Y, P.P.C., is recoverable from the
convict or from his estate in case he dies before paying the same. Such
compensation, according to him, is meant primarily for making up for a
loss caused by the convict and, therefore, it can also be termed as a 'debt'
for the recovery of which the provisions of the civil law can be usefully
pressed into service. He has maintained that in the civil law a loss is to be
compensated for by the‑wrongdoer either in contractual matters or in
respect of torts and in both of these spheres such compensation is
awarded in the shape of damages which, if not recovered, assume the
status of a debt. He has further maintained that a debt is either owed to a
private creditor or to the State and on the civil side the law is fairly
developed as to how such a debt is to be recovered through execution of
a decree. While advancing this submission Mr. Bandial has categorically
maintained that before detaining a person in execution of a decree for
recovery of a debt an inquiry has to be conducted regarding his capacity
to pay back such debt and in any case his detention for the purposes of
recovery of such debt cannot be for an indefinite period and certainly
not for the rest of his life. In this regard he has referred to the following
legislative enactments and provisions:‑‑

(i) Sections 36 to 74, C.P.C. and particularly section 55 thereof dealing

with arrest and detention of the judgment‑debtor according to which a
judgment‑debtor may be detained in prison for a maximum period of one
year whereafter he cannot be detained any further but his liability to pay
back the debt remains intact;

(ii) Order XXI, rules 37 to 41, C.P.C. requiring holding of an inquiry into
the judgment‑debtor's capacity to pay back the debt and providing the
judgment‑debtor an opportunity to satisfy the Court that he cannot pay
back the debt and, therefore, he may not be detained;

(iii) Section 48 in Chapter IX of the Sales Tax Act, 1990;

(iv) Section 202 of the Customs Act, 1969;

(v) Sections 80 and 82 in Chapter VIII the Land Revenue Act, 1967; and

(vi) The Provincial Insolvency Act, 1920.

With reference to the provisions of section 82 of the Land Revenue Act,

1967 Mr. Bandial has maintained that after exhaustion of the period of
imprisonment provided in the relevant provisions of the said Act there is
no provision for the defaulter's re‑arrest for an indefinite period till he
pays up his liability. In this context he has referred to the case of
Muhammad Riaz v. District Collector, Okara (PLD 1997 Lahore 680)
wherein it has been held by this Court that the provisions of the Land
Revenue Act, 1967 are to be strictly construed in this regard. He has also
extensively referred to the provisions of sections 6, 7, 27, 28, 31, 41 and 44
of the Provincial Insolvency. Act, 1920 to point out that imprisonment of a
person in execution of a decree of any Court for payment of money is by.
itself an act of insolvency, upon such person's petition for adjudication, of
his insolvency a Court can pass an order of adjudication whereafter the
whole property of such person may vest in the Court, consequent upon
an order of adjudication of insolvency the Court, after declaring such
person an un-discharged insolvent, may grant such person protection
against arrest or detention subject to imposition of certain conditions
and upon an application for discharge submitted by him the Court may
discharge him upon condition qua his future earnings, According to the
learned amicus curiae such person cannot be discharged as far as debts
owned to the Government are concerned but as all other debts he can be
released from all of them by the Court. Drawing an analogy from the
provisions of the Provincial Insolvency Act, 1920 Mr. Bandial has argued
that an imprisoned convict incapable of discharging his financial liability
towards his victim or his heirs may apply before the trial Court for his
discharge from his liability in that regard.

14. Finally, with reference to the provisions of section 544‑A, Cr.P.C., Mr.
Bandial has argued that a clear indication already exists on the statute
book that in case of failure of a convict to pay the required compensation
to the victim or his heirs he can be imprisoned for a maximum period of
six months and thereafter the amount of compensation is to be recovered
from him by way of arrears of land revenue. He has, thus, agreed with
Kh. Saeed uz‑Zafar, the learned Deputy Attorney‑General, that the
ambiguous and obscure provisions of sections 331, 337‑X and 337‑Y, P.P.C.
are to be read down so as to harmonize the same with the clear and
unambiguous provisions of section 544‑A, .Cr.P.C. According to him such
reading down of the said provisions is to be in accord with the
well‑established principles of interpretation of statutes.

15. Dr. Syed Riaz‑ul‑Hassan Gilani, Advocate, while appearing as an

amicus curiae, submitted at the outset that the law relating to Qisas and
Diyat had been introduced in and injected into our pre‑existing criminal
law and legal system without any serious debate or deliberation as the
same had been done hurriedly under the compulsions of the judgment
handed by the Hon'ble Shariat Appellate Bench of the Supreme Court of
Pakistan in the case of Federation of Pakistan v. Gul Hassan (PLD 1989 SC
633). According to Dr. Gilani many of the amendments introduced in the
relevant law in this regard need to be reconsidered, reviewed and
suitably amended so as to make this new dispensation rational and
practicable. For instance he has pointed out that in Islamic Jurisprudence
Diyat is' not a punishment but only compensation to the heirs of the
victim and, thus, it has wrongly been introduced in the law as a
punishment. He has added that the concept of Aqila has been ignored in
the law in this regard which concept was necessary to ensure that in case
of inability of the culprit to pay Diyat the heirs of the victim still receive
the requisite compensation. He has also maintained that before passing
an order regarding payment of Diyat it is incumbent upon a trial Court to
hold an inquiry to determine whether the convict is capable of paying
Diyat or not. In this context he has referred to the case of Muhammad
Afzal alias Seema v. The State (1999 SCMR 2657) wherein the Hon'ble
Supreme Court has, with reference to the provisions of section 308, P.P.C.,
held that such an inquiry has to be conducted in case of a minor convict.
Dr.Gilani has taken a categorical stand that the provisions of sections 331,
337‑X and 337‑Y, P.P.C., as they stand at present, are unreasonable,
obscure and oppressive besides militating against the Injunctions of
Islam.

With reference to the case of The Bank of Punjab v.

Administrator‑General, Central Zakat Administration, Islamabad and
others (PLD 1994 Lahore 207) he has argued that while interpreting a
legal provision this Court can read words in a statute which are
otherwise not there and this exercise can be undertaken in order to
render the relevant statute more reasonable. Dr. Gilani has referred to
Sura Al‑Baqara, Verse 178 in the Holy Qur' an to maintain that Diyat is
liable to be paid to the heirs of the victim on the basis of a compromise
between the parties and such a compromise has to be arrived at on the
basis of socially approved terms and in a fair and reasonable manner
and it is left open in the said verse of the Holy Qur' an as to who shall pay
Diyat to the heirs of the victim after such a compromise. According to Dr.
Gilani Almighty Allah has himself kept this aspect open so that in an
appropriate case where the culprit is incapable of making the requisite
payment himself there making of such a payment on behalf of the culprit
by somebody else may be possible. He has also referred to page 559 of
Bada‑i‑al‑Sana, Volume VII (translated by Prof. Khan Muhammad Chawla
and published by Markaz‑e‑Tahqeeq, Research Cell, Diyal Singh Trust
Library, Nisbet Road, Lahore) to contend that if a convict is unable to pay
Diyat then the same ought to be paid on his behalf by the Aqila (his clan
or tribe) and if he has no Aqila then the State is to make the requisite
payment on his behalf to the heirs of the victim. Dilating upon the matter
jurisprudentially Dr. Gilani has maintained that establishment of proper
institutions is a prerequisite as well as a precondition for proper and
effective application of the Islamic system of dispensation of criminal
justice based upon Qisas and Diyat. In this regard he has read out an
extract from page 205 of a book titled The Islamic Criminal Justice
(published in 1979. by the Oceana Publication Incorporation, New York,
U.S.A.) wherein it has been observed that in the Islamic Sharia the
purpose is not retaliatory Qisas but the real purpose is to develop a
system of criminal justice which is institutional in response and for
achieving the said purpose institutions are to be established and officials
are to be trained. Advancing the same theme Dr. Gilani has referred to
Sura Tauba, Verse 60 in the Holy Qur' an and has maintained that Diyat
can be paid from the Zakat Fund or Bait‑ul‑Mal to the heirs of a victim on
behalf of a destitute convict as such an exercise would be in consonance
with the required institutional response to the issue.

16. Syed Afzal Haider, Advocate, a member of the Council of Islamic

Ideology, has also assisted this Court as amicus curiae and has addressed
elaborate arguments. Like Dr. Gilani he has also maintained at the outset
that the law relating to Qisas and Diyat had been introduced in our
criminal legal system without proper debate or deliberations and that is
why it is replete with anomalies, contradictions and sometimes
downright obscurities. According to him it is now for the superior Courts
of the country to take appropriate remedial action in all these regards
through the means of judicial interpretation or where needed, through
positive activism. He has, however, pointed out that by virtue of the
provisions of section 338‑F, P.P.C. in the matter of interpretation and
application of the law relating to Qisas and Diyat this Court is to be
guided by the Injunctions of Islam as laid down in the Holy Qur'an and
Sunnah. In this context he has also referred to the provisions of section
4(a) of the Enforcement of Shariat Act, 1991 according to which all the
conflicts or doubts in the provisions of all the statutes are to be resolved
in accordance with the Injunctions of Islam.

17. While extensively quoting from the Holy Qur'an Syed Afzal Haider
has pointed out that Almighty Allah has bestowed 'dignity' upon mankind
(Sura 17 : Verse 70) and has declared mankind to be the best of his
creations (Sura 95 : Verse 4). Highlighting Almighty Allah's and his
messengers' mercy for human beings, especially for those in captivity or
debt, he has referred to the following passages from the Holy Qur'an:‑‑

Sura 76 : Verse 8: "Out of love for God they make provision for the
poor, the orphan and prisoner."

Sura 2 : Verse 177: One of the purposes of sending the prophets is

to "give away wealth for emancipation of the captive."

Sura 6 : Verse 54: "God has made it obligatory upon himself to be

merciful."

Sura 9 : Verse 60: It is divinely ordained to give alms for "gharmin"

(those who are in debt).

Sura 70 : Verse 24: Those who deserve or are in need have a

"known right" to be helped.
Sura 56 : Verse 73: Divine command to spend on the needy.

Sura 3 : Verse 17: Divine command to spend on those in need. .

He has also pointed out that Almighty Allah has repeatedly proclaimed
that "Allah does not impose upon any soul a duty/burden but to the
extent of his ability" (Sura 2 : Verse 233, Sura 2 : Verse 286, Sura 4 : Verse
83, Sura 6 Verse 152, Sura 7 : Verse 42, Sura 23 : Verse 62 and Sura 65 :
Verse 7). This aspect of the matter, according to him, has also been
reflected in the Constitution of the Islamic Republic of Pakistan, 1973
through Article 3 thereof which provides for elimination of all forms of
exploitation and enunciates the principle "from each according to his
ability". Thus, according to Syed Afzal Haider, no person can be placed
under a burden that he cannot discharge and likewise no convict can be
required to discharge a liability that he is incapable of meeting. While
developing this argument he has argued that according to the Holy
Qur'an Almighty Allah creates comfort, ease, facility and convenience for
human beings (Sura 92 : Verse 7, Sura 2 : Verse 185 and Sura 94 : Verses 5
and 6) and, therefore, while interpreting and applying a law a beneficial
interpretation of the same is to be advanced and that approach is to be
adopted which creates facility and convenience for a hard‑pressed
human being. While dilating upon the same theme Syed Afzal Hiader has
also alluded to the Sunnah of the Holy Prophet (p.b.u.h.) and has referred
to the following:‑‑--

Ideal Muslim: Page 262 by Dr. Muhammad Ali‑al‑Hashmi,

published by Islamic Publishing House, Riadh, Saudi Arabia. 'Teach
and make things easy. Do not make them difficult.' (Sahih
ul‑Bukhart).

Sahib‑ul‑Bukhari: Hadith No.3560 'Teach and make things easy. Do

not make them difficult.'

Sahib‑ul‑Bukhari: Hadith No.2165 'Teach and make things easy. Do

not make them difficult.'
 Al‑Mawafiqat: Page 15 by Imam Abu Ishaque Ibrahim bin Musa,
published by Markaz‑e‑Tehqeeq, Research Cell, Diyal Singh Trust
Library, Nisbat Road, Lahore. (There are five fundamentals
guaranteed by Sharia: Din, Nafs, Nasl, Mal and Aql).

Begum Rashida Patel v. Federation of Pakistan (PLD 1989 FSC 95 at

page 115) (There are five, fundamentals guaranteed by "Sharia Din,
Nafs, Nasl, Mal and Aql).

18. Syed Afzal Haider has categorically and unmincingly maintained that
in an Islamic Society it is duty of the State to satisfy the needs of those
subjects who are in genuine need of help and if such help is required in
the shape of financial assistance then the same can be provided from the
Bait‑ul -Mal. In this regard he has made a reference to the following:‑‑`

Sanin-u‑Bukhari‑ Hadith No.4781 (If somebody dies and leaves a

debt then I shall bear the responsibility for its repayment).

Sahib‑ul‑Bukhari: Hadith No.2298 (If somebody dies and leaves a

debt then I shall bear the responsibility for its repayment).

Sunan Abu Daud: Second Volume, Chapter 513, Hadith No.1184,

page 465 (Duty of the State to satisfy the needs of the destitute
subjects).

Mishqat: Hadith No. 1733, page 386 ('Needy' is a person who is in

debt).

Islam ka Faujdari Qanoon: Volume 2, page 61 by Abdul Qadir Auda

Shaheed, published by the Islamic Publications Limited, Shah Alam
Markat, Lahore (If a convict and his family are not in a proper
financial position to pay Diyat then Bait‑ul‑Mal should pay the
same).

Fiqah Hazrat Umar: Page 317 by Dr. Muhammad Rawas Kalaji,

published by Adara‑i‑Muarif‑i‑lslami, Multan Road, Lahore (Caliph
Umar used to release an indebted person if he could satisfy that he
could not repay the debt).

Qisas‑o‑Diyat: pages 60 and 61, published in 1990 by Adara‑e -

Tehqeeq‑e‑Islami, Islamabad. (Hadith that I shall pay Diyat for
somebody who cannot pay it on his own).

Hudood, Qisas Diyat Tazirat: pages 203 to 207 by Dr. Tanzeel‑ur-

Rehman, published by Qanooni Kutab Khana, Katcheri Road,
Lahore (if a convict cannot pay Diyat then the same is to be paid by
the Aqila).

Fiqah Hazrat Abu Bakar: page 132 by Dr. Muhammad Rawas

Kalaji, published by Adara‑e‑Muarif‑e‑Islami, Mansoora, Lahore. (A
destitute who cannot repay debt cannot be imprisoned for such
non‑payment).

Al‑Fiqah: (Fiqah‑e‑Jafaria), Kitab‑ul‑Diyat by Muhammad

al‑Hussaini‑Al‑Sherazi (If a convict cannot pay Diyat then the same
 is to be paid by the Bait‑ul‑Mal).

Tehreer‑ul‑Wasila: Volume NQ.4, page 437 by Imam Khomeni,

'published in 1994 by Muassisa Tanzeem‑o‑Nashr Asar‑i‑Imam
Khomeni, Amoor Bain‑ul‑Milal. (A destitute convict's Diyat can be
paid through the Bait‑ul‑Mal).

Shara‑i‑al‑Islam fi Masail‑ul‑Halal‑i‑wal‑Haram: by Abu] Qasim

Najmuddin Jafar bin Hassan. (Diyat can be paid through the
Bait‑ul- Mal on behalf a‑convict incapable of paying the same).

Sahib‑Muslim: Volume 2, Hadith No. 137 published by Sheikh

Ghulam Ali & Sons. (Bait‑ul‑Mal to pay Diyat for the benefit of a
convict if he cannot pay the same himself).

Sahib‑ul‑Bukhari: Hadith No.6898 (Bait‑ul‑Mal to pay Diyat for a

destitute convict),

Al‑Faroa Minal Kafi: page 360 by Al‑Kulaini Al‑Razi, published by

Dar‑ul‑Kutab‑ul‑Islamia, Tehran, Iran. (If a convict is incapable of
paying Diyat to the heirs of the victim then the same is to be paid
by the Bait‑ul‑Mal).

Sahih Muslim Sharif: pages 295, 296 and 297 (Diyat paid by the
Holy Prophet (p.b.u.h.) for the benefit of a convict who was
incapable of paying the same on his own).

Mishqat‑ul‑Masahib: Volume 3, page 169 published by Adara

Ahya‑us‑Sunnah, Girja Ghar, Gujranwala and Urdu Bazar, Lahore
(No punishment awarded where the culprit was a destitute).

The Mejelle: pages 5 to 7, Principles Nos. 17, 18, 20, 21, 30, 31 and
32 published by PLD Publishers, Lahore.

19. Adverting to the Constitutional and legal dispensation in Pakistan

Syed Afzal Haider has maintained that after entering into a social
contract in the shape of the Constitution of the Islamic Republic of
Pakistan, 1973 the people of Pakistan have shunned and forsaken the old
concepts of clans and tribes and have forged themselves into one
community while putting the State in charge of their affairs. He has, thus,
argued that if the State is now responsible for prosecuting an offender
who commits a crime against citizens then the State must also be held
responsible for payment of compensation to a victim of a crime if the
offender citizen is incapable of doing the same. According to him the
State collects taxes from the citizens in order to spend the same for the
benefit and welfare of the citizens and the fruits of this welfare should be
available both to the aggrieved as well as to the needy. Syed Afzal Haider
has also argued that the State is the modern manifestation of the Islamic
concept of Aqila. While referring to Article 172 of the Constitution and
the concept of escheat contained therein he has maintained that if the
State takes over and manages the property which is ownerless then the
affairs of the impoverished and sourceless citizens should also be taken
over and looked after by the State. In this context he has also referred to
the provisions of Order XXXIII, C.P.C. to point out that a destitute is taken
care of by the State by treating him as a pauper and facilitating him in his
litigation in forma pauperis. He has gone on to maintain that in our legal
system a citizen's liability depends upon his legal capacity and, according
to him, a sourceless prisoner incapable of discharging his financial
liability is bereft of any legal capacity and, thus, such a liability becomes
unenforceable against him. By way of instances of extinction of liability
or enforceability he has referred to the provisions of sections 306 and
307, P.P.C. which provide that Qisas shall not be liable or enforceable qua
a convict in certain situations. He has further maintained that if the State
had failed to provide sufficient protection to the victim then the blame
for the harm to that victim should also be shared by the State which
should, in case of inability of the culprit to pay compensation to the
victim or his heirs, itself contribute towards payment of such
compensation. According to him such an action of the State is going to
promote peace in the society which is one of the primary responsibilities
of the State. He has, however, gone on to maintain that if the State pays
the requisite compensation on behalf of the culprit on account of his
financial inability in that regard then after the said culprit's release the
State should make him undergo a compulsory service on a project of
public welfare so that he is gainfully employed therein and, thus, the
amount of money spent by the State for his benefit in the matter of
payment of compensation is ultimately recovered from him by the State.

20. Syed Afzal Haider has also alluded to the juristic division of laws in
Islam between Wajib (obligatory), Mandoob (recommendatory), Mubah
(permissible or indifferent), Makrooh (disapproved and Haram
(forbidden). According to him payment of Diyat by the State to the
victim's heirs on behalf of a destitute convict is not expressly forbidden
or disapproved by the Holy Qur' an and Sunnah and, therefore, the same
would fall in the category of Mubah (permissible or indifferent) and this
Court can comfortably adopt a beneficial interpretation in this regard. He
has lastly maintained that it is of extreme indignity to humanity if a
human being is deprived of his liberty for an indefinite period merely
because, on account of his very poor financial condition, he cannot,
despite his willingness, buy his liberty by discharging a financial liability
and that an interpretation by this Court which ensures to the benefit of
such an unfortunate human being would be in consonance with, the
Islamic concepts of social justice.

21. I must confess that after hearing the learned counsel for the parties
and .the learned amicus curiae at great length and after attending to the
voluminous supporting material and the case‑law referred to by them
and also after carefully alluding to the relevant statutory provisions
which call for interpretation in the present petitions 1 had many a
sleepless night while pondering and brooding over the diverse issues
involved in these petitions. At different stages of the hearing of these
petitions I had felt myself torn between images of the culprits mercilessly
inflicting injuries on the persons of their innocent victims and the
resulting pain and anguish suffered by those victims and images of those
very culprits now helplessly rotting in iron cages after serving out their
substantive sentences of imprisonment merely because of their abject
poverty and hoping against hope that some day the society may look
upon their unfortunate predicament with mercy and compassion.
Another image appearing in my mind was that of a onetime oppressor or
aggressor who, by undergoing and serving out the entire sentence of
imprisonment passed against him for the crime committed by him, has
already substantially cleansed himself of the relevant crime and he may
now be a victim himself, a victim of his own unfortunate financial
circumstances. All these images would have had very little relevance if
the relevant statutory provisions had been clearly and happily worded
because in that case the job of this Court would have been much easier,
i.e. to decide according to the express provisions of the relevant statute.
However, unfortunately, the relevant statutory provisions calling for
interpretation in these petitions present nothing but a nightmare of
interpretation and that is why all the other aspects relevant to these
matters have to be kept in view while trying to come out with an
interpretation which makes some sense of these provisions, a sense
which is not only reasonable and acceptable but also a sense which fits
into the remaining body of the laws already available in the field on the
subject. I must also admit that it was mainly by adhering to the
requirements of the provisions of section 338‑F, P.P.C. mandating
interpretation and application of these laws in accordance with the
Injunctions of Islam as laid down in the Holy Qur'an and Sunnah that all
the clouds of doubt in my mind have simply vanished and this has given
me the confidence to go ahead and decide these petitions in the manner
that I propose to do in the following paragraphs. The guiding Islamic
requirement that I have decided to follow herein is reaching out to those
in dire need and debt and to visit the unfortunate predicament of such
persons with mercy and compassion rather than vengeance, cruelty and
perversity.

22. The relevant statutory provisions around which the issues involved in
the present petitions revolve are reproduced here for facility of
reference:

Section 299(b), P.P.C.

"Arsh" means the compensation specified in this Chapter to be paid to the

victim or his heirs under this Chapter.

Section 299(d), P.P.C.

"Daman" means the compensation determined by the Court to be paid by

the offender to the victim for causing hurt not liable to Arsh. "

Section 299(e), P.P.C.

"Diyat" means the compensation specified in section 323 payable to the

heirs of the victim."

Section 331, P.P.C.

"Payment of diyat.‑‑(1) The Diyat shall be made payable in lump sum or in

instalments spread over a period of three years from the date of the final
judgment.

(2) Where a convict fails to pay Diyat or any part thereof within the
period specified in subsection (1),, the convict may be kept in jail and
dealt with in the same manner as if sentenced to simple imprisonment
until the Diyat is paid in full or may be released on bail if he furnishes
security equivalent to the amount of Diyat to the satisfaction of the Court.
(3) Where a convict dies before the payment of Diyat or any part thereof,
it shall be recovered from his estate."

Section 337‑X, P.P.C.

"Payment of Arsh.‑‑(1) The Arsh may be made payable in lump sum or in

instalments spread over a period of three years from the date of the final
judgment.

(2) Where a convict fails to pay Arsh or any part thereof within the
period specified in subsection (1), the convict may be kept in jail and
dealt with in the same manner as if sentenced to simple imprisonment
until Arsh is paid in full or may be released on bail if he furnishes
security equal to the amount of Arsh to the satisfaction of the Court.

(3) Where a convict dies before the payment of Arsh or any part thereof,
it shall be recovered from his estate."

Section 337‑Y, P.P.C.

"Value of Daman.‑‑(1) The value of Daman may be determined by the

Court keeping in view:‑‑

(a) the expenses incurred on the treatment of the victim;

(b) loss or disability caused in the functioning or power of any organ; and

(c) the compensation for the anguish suffered by the victim.

(2) In case of non‑payment of Daman, it shall be recovered from the

convict and until Daman is paid in full to the extent of his liability, the
convict may be kept in jail and dealt with in the same manner as if
sentenced to simple imprisonment or may be released on bail if he
furnishes security, equal to the amount of Daman to the satisfaction of
the Court."

Section 338‑F, P.P.C. .

"Interpretation.‑‑In' the interpretation and application of the provisions

of this Chapter, and in respect of matters ancillary or akin thereto, the
Court shall be guided by the Injunctions of Islam as laid down in the Holy
Qur'an and Sunnah."

Section 338‑G, P.P.C.

"Rules.‑‑The Government may, in consultation with the Council of Islamic

Ideology, by notification in the official Gazette, make such rules as it may
consider necessary for carrying out the purposes of this Chapter."

Section 544‑A. Cr.P.C.

"Compensation to the heirs of the person killed etc.‑‑(1) Whenever a

person is convicted of an offence in the commission whereof the death of
or hurt, injury, or mental anguish or psychological damage to, any person
is caused, or damage to or loss or destruction of any property is caused,
the Court shall, when convicting such person, unless for reasons to be
recorded in writing it otherwise directs, order the person convicted to
pay to the heirs of the person whose death has been caused or to the
person hurt or injured, or to the person to whom mental anguish or
psychological damage has been caused, or to the owner of the property
damaged, lost or destroyed, as the case may be, such compensation as the
Court may determine having regard to the circumstances of the case.

(2) The compensation payable under subsection (1) shall be recoverable

as an arrear of land revenue and the Court may further order that, in
default of payment or of recovery as aforesaid the person ordered to pay
such compensation shall suffer imprisonment for a period not exceeding
six months, or if it be a Court of the Magistrate of the Third Class, for a
period not exceeding thirty days.

(3) The compensation payable under subsection (1) shall be in addition to

any sentence which the Court may impose for the offence of which the
person directed to pay compensation has been convicted.

(4) The provisions of subsections (2‑B), (2‑C) and (4) of section 250 shall, as
far as may be, apply to payment of compensation under this section.

(5) An order under this section may also be made by an Appellate Court
or by a Court when exercising its powers of revision."

23. The first point for consideration is as to the exact nature of Diyat,
Arsh or Daman so as to determine its true effect. It is true that the
definitions of these words contained in section 299, P.P.C. describe them
as 'compensation' but the fact remains that section 53, P.P.C. clearly
provides that Qises, Diyat, Arsh and Daman besides Tazir death,
imprisonment for life, imprisonments both rigorous and simple,
forfeiture of property and fine are 'punishments' to which offenders are
liable under the provisions of the Pakistan Penal Code. Diyat is in fact an
alternate punishment to Qisas and the provisions of section 308, P.P.C.
confirm the same. Likewise Daman and Arsh are independent
punishments in their own right. Diyat, Arsh and Daman may, however,
be correctly described as punishments which are compensatory in
nature but nonetheless they remain substantive punishments. Thus, the
attempt by Kh. Saeed‑uz‑Zafar, the learned Deputy Attorney‑General, and
by Mr. Umar Ata Bandial, the learned amicus curiae, to portray these
punishments as merely compensation may not I be apt and their
argument that such compensation is another form of a debt attracting
various provisions of the civil law for its recovery may also not be
acceptable. A substantive 'punishment' provided for a penal offence has
to be undergone by the convict in the manner provided by the criminal
law and there is no escape from it other than any provided by the
criminal law itself,

24. As regards the mode of payment of recovery of Diyat, Arsh or Daman

the same is provided for by the provisions of sections 331, 337‑X and
337‑Y, P.P.C. reproduced above. The difference to this regard between
Diyat and Arsh on the one hand and Daman on the other is that sections
331 and 337‑X, P.P.C. dealing with payment and recovery of Diyat and
Arsh respectively expressly provide for a grace period of three years to
the convict for their payment but section 337‑Y, P.P.C. pertaining to
Daman is silent I about any such period. This could well be a result of an
inadvertent omission on the part of the Draftsman but if the omission in
this regard is deliberate then the reason for the same is not readily
discernible. The remaining 'p provisions of sections 331, 337‑X and 337‑Y
in respect of the mode of payment and recovery of Diyat, Arsh and
Daman are more or less similar, if not identical, and the same can be
recapitulated through the following steps which are provided therein:

(i) After the final judgment by the Court (presumably the trial Court) the
convict is to be allowed a period not exceeding three years to , pay Diyat
or Arsh either in lump sum or in instal iitent;.

(ii) If the convict fails to pay Diyat or Arsh or any part thereof within the
abovementioned period allowed to him or he fails to pay Daman then he
may be kept in jail until Diyat, Arsh or Daman is paid by him in full.

(iii.) After failure of the convict to pay Diyat or Arsh within the period
allowed to him and non‑payment of Daman by him he may be' released
on bail if he furnishes security equivalent to the amount of Diyat, Arsh or
Daman.

(iv) In case of death of the convict before payment of Diyat, Arsh or

Daman the same is to be recovered from his estate.

Upon a close and critical scrutiny of these provisions I have found that
there are certain inherent obscurities and some downright absurdities
engrained therein. It has already been noticed above that a grace period
up to three years for making the requisite payment has been provided
for payment of Diyat and Arsh but no such period has been provided for
payment of Daman. It is not clear whether during this grace period the
convict is to remain in jail or on bail. It is also not clear whether the
convict would be kept in jail even where he has made a partial payment
of Diyat or Arsh within the grace period or not. According to these
provisions the grace, period is, to start from the date of the final
judgment but it has not been clarified whether the date of the judgment
would be the date of the judgment passed by the trial Court or the date of
the judgment passed by the appellate or revisional Court. The fate of such
grace period, if allowed, during the pendency of appeal or revision has
also been left ambiguous in these provisions. It is also not clear when and
at what stage the consequences of non‑payment of Daman shall become
operative as it is not provided that the convict shall be allowed any
particular period for payment of Daman before his arrest for its
non‑payment. The question regarding the true import and meaning of
the words "kept in jail" has also been left a begging an answer. It is not
clear whether these words mean that the convict is already in jail and he
would continue to be "kept" there or they mean that he shall be arrested
upon non‑payment of Diyat, Arsh or Daman after expiry of the period
allowed to him for the purpose, if any, and shall then be kept in jail till
the requisite amount is recovered from him. If such a grace period is to
be allowed immediately upon announcement of the final judgment then
it is not clear whether during such period the convict is to be set free to
make arrangements for the requisite amount of money or he is to be kept
to custody and to make arrangement for the money while confined in
jail. There may be cases wherein, apart from the sentence regarding
payment of Diyat, Arsh or Daman on one or more counts ‑of the charge,
the convict is also sentenced to death, imprisonment for life or other
sentences of imprisonment on other counts of the charge. Would such a
convict also .be entitled to be set free for a period up to three years upon
announcement of the judgment or such a convict is to make
arrangements for making the requisite payment while confined in jail is
also an intriguing question as in the latter situation the concept of the
grace period would lose its essence and spirit and in the former situation
the convict may abscond to save his life or to avoid a prolonged
imprisonment. Releasing the convict on bail implies that he is already in
custody but it may not necessarily be‑the case because this part of the
relevant statutory provisions becomes operative after expiry of the grace
period allowed to the convict for making the requisite payment. If the
convict is already in custody then this provision does not make any sense
as it throws up a situation that during the period allowed to the convict
for making the requisite payment he is in custody but upon his failure to
make the payment within the said period he may be favoured with bail.
This appears to be nothing but absurd as a convict is not expected to be
rewarded for his failure in that regard. Apart from that the concession of
bail contemplated by these provisions can be extended only upon
furnishing of 'security' by the convict and not upon furnishing of surety
or personal bond. Security is normally of some valuable property. ‑If such
a convict owns any valuable property valuing equivalent to the amount
of Diyat, Arsh or Daman or somebody is ready to come forward for the
benefit of such a convict by providing such security for the purpose of his
bail then it is not expected that such a convict would prefer to remain in
jail rather than furnishing of the necessary security for his bail. It
appears that these provisions fail to cater for a convict who is completely
a destitute and who has no one else to furnish such a security for his bail,
as is the case of 145 prisoners mentioned above who are presently
languishing in different jails in the Province of the Punjab.
Ridiculousness of these provisions is further highlighted by the
provisions relating to recovery of the amount of Diyat, Arsh or Daman
from the estate of a convict who dies without making such payment.
There may be a convict having or leaving no estate at all. In such a case
this part of the p punishment, which was primarily compensatory in
nature, becomes meaningless or loses its relevance to the victim or his
heirs. In case such a convict is on bail before his death there the damage
may be minimal but one can imagine a possible situation where he is
being "kept in jail" for the requisite payment and after remaining in jail
for the rest of his life he dies in jail without making such a payment and
leaves behind no estate for making a recovery possible therefrom. In
such a case, after serving out his entire substantive sentence of
imprisonment, the convict would be said to have been imprisoned for the
rest of his life for no other reason except his poverty and his such
imprisonment is going to be of no real benefit to the victim or his heirs. It
is this aspect of the matter which is the most offensive and unreasonable
in. the provisions of sections 331, 337‑X and 337‑Y, P.P.C

25. Scrutiny of the provisions of sections 331, 337‑X and 337‑Y, P.P.C.
undertaken in the preceding paragraph leaves no doubt in my mind that
most parts of the said provisions are replete with ambiguities,
unexplainable obscurities and sometimes downright absurdities. A law
governing crime and punishment and dealing with lives and liberties of
citizens cannot be allowed by this Court to hold the field if such law is not
only unreasonable but also capable of working as an engine of
unjustifiable oppression.

26. Section 338‑F, P.P.C. requires that while interpreting and applying the
provisions of the Chapter containing the abovementioned provisions this
Court is to be guided by the injunctions of Islam as laid down in the Holy
Qur'an and Sunnah. None of the learned counsel appearing in these
petitions has been able to point out any 'Nus' from the Holy Qur'an or
Sunnah requiring treatment of a convict, for the purposes of payment or
recovery of Diyat, Arsh or Daman from him, in the manner provided in
the provisions of sections 331, 337‑X and 337‑Y, P.P.C. To my humble mind
Islam is a religion of reason and compassion. Unfortunately the relevant
provisions of the abovementioned sections of the Pakistan Penal Code are
either unreasonable or oppressive and, thus, the same do not appear to
be adjusting well with the principles of Islamic dispensation of criminal
justice.

27. Apart from what has been observed above in the opening part of this
judgment I have already remarked that putting a human being, the best
of Almighty Allah's creations, behind the bars for the rest of his life for no
other reason than his impoverished financial condition is an idea
offensive to the 'dignity' bestowed upon him by the Creator. The Holy
Qur'an requires the believers to hate crime but not the criminal and to
extend mercy and compassion towards his unfortunate predicament
wherever and, however, possible. As already observed above, the
Constitution of the Islamic Republic of Pakistan, 1973 ensures it as a
Fundamental. Right guaranteed by Article 14 thereof that the dignity of
man is inviolable and in the case of In re: Suo Motu Constitutional
Petition 1994 SCMR 1028 the Hon'ble Supreme F Court of Pakistan had
unequivocally declared that even the worst criminal is entitled to his
dignity as a human being. I am of the considered, opinion that after
serving out his substantive sentence of imprisonment keeping such a
convict in jail for the rest of his life merely because he is not in a position
to pay the requisite amount of compensation to the victim or his heirs or
because he is not in a position to furnish the requisite security for his bail
is a punishment which is not only incommensurate with the additional
compensatory punishment awarded against such a convict but is also
demeaning, debasing, humiliating and offensive to human dignity. I for
one ' cannot allow a human being to rot in jail like a vegetable or to die in
an iron cage like an animal merely because, for no fault of his own, he
cannot buy his freedom by paying off another human being.

28. It may not be out of place to mention here that according to the
provisions of section 53, P.P.C. fine is as much a punishment as Diyat,
Arsh or Daman. The provisions of sections 64 to 71, P.P.C. clearly show
that in case of default in payment of fine a convict may be detained in jail
for a specified period but certainly not for an indefinite term. After
expiry of that specified period the liability of the convict to pay the
amount of fine remains intact but he cannot be imprisoned for that
purpose any more. The same appears to be the position in the civil law in
respect of debts or other financial liabilities as ably demonstrated by Kh.
Saeed‑uz‑Zafar, the learned Deputy Attorney‑General, and Mr. Umar Ata
Bandial, the learned amicus curiae. Interestingly even the provisions of
section 544‑A, Cr.P.C. dealing with a matter akin to that of Diyat, Arsh and
Daman as well as to . the purposes of sections 331, 337‑X and 337‑Y, P.P.C.
contemplate and provide for a similar approach. Thus, there is no reason
why in the matter of payment and recovery of Diyat, Arsh or Daman the
mechanism and methodology provided in section 544‑A, Cr.P.C. may not
be followed which provisions are not only otherwise clear, reasonable
and fair but the same also fit into the general scheme of laws governing
similar liabilities.

29. Adverting now to the question whether a destitute prisoner cart seek
assistance from the.Zakat Fund or Bait‑ul‑Mal for the purposes of
payment of Diyat, Arsh or Daman or not, it may, straightaway be
observed that all the learned counsel, including the learned Deputy
Attorney‑General and the learned Law Officer appearing on behalf of the
Advocate‑General, Punjab, have maintained before this Court in unison
that the State is the modern manifestation of Aqila and in an appropriate
case such an assistance can, be provided to a convict from the
abovementioned sources. The references from the Holy Qur'an. Hadith of
the Holy Prophet (p.b.u.h.), opinions of various scholars of Islamic law
and instances from the Islamic history cited by Syed Afzal Haider, Dr.
Riaz‑ul‑Hassan Gilani and Syed Shabbar Raza Rizvi, Advocates, the
learned amicus curiae, clearly show that in an appropriate case an
Islamic State can pay, and has been paying, Diyat on behalf of convicts
who are unable to pay the same on their own. This may be for manifold
reasons. Firstly, the requisite compensation is meant to satisfy vengeance
of the victim or his heirs and such a payment by the State obviates! a
likelihood of reprisal or vendetta and thereby achieves peace in the
society which is one of the primary responsibilities of the State Secondly,
the State had failed to protect the victim's life or physical safety and it,
thus, cannot avoid sharing the blame for the harm coming to him and
therefore, chipping in by the State towards payment of compensation to
the victim or his heirs is the least that the State can do in such a situation.
And, thirdly being a welfare State, an Islamic State is even otherwise
expected to reach out and come to the rescue and assistance of a helpless
citizen in need, be he a convict who has substantially cleaned himself of
the crime by undergoing the entire substantive sentence of
imprisonment passed against him. Section 8 of the Zakat and Ushr
Ordinance, 1980 and section 4 of the Pakistan Bait‑ul- Mal Act, 1991 speak
of "needy" and "other needy persons" respectively who are entitled to
receive assistance from such sources. There is, thus, no reason why,
especially in view of availability of such instances in the Islamic history, a
destitute convict in the Islamic Republic of Pakistan may 'not receive
assistance from such sources for the purpose of paying compensation to
the victim or his heirs. It goes without saying that the abovementioned
laws provide for a detailed mechanism to find out whether the request
for assistance made by a person is genuine and bona fide or not. The
suggestion made by Syed Afzal Haider, Advocate, the learned amicus
curiae, to the effect that if the State pays the requisite compensation on
behalf of the culprit on account of his financial inability in that regard
then after the said culprit's release the State should make him undergo a
compulsory service on a project of public welfare so that he is gainfully
employed therein and, thus, the amount of money spent by the State for
his benefit in the matter of payment of compensation is ultimately
recovered from him by the State appears to be a suggestion which needs
consideration by the State. This suggestion not only solves the convict's
immediate problem qua securing his release from prison but it also
protects his self‑respect besides ensuring recovery of public money spent
for the benefit of such a convict. It may be pertinent to observe here that,
as is evident from the report submitted by the Inspector‑General of
Ptisons, Punjab, the State is already spending a lot of money on boarding
and lodging of such prisoners and there may be cases where the State
may ultimately end up spending more on keeping a prisoner in jail than
paying up such prisoner's liability towards the victim or his heirs. This
aspect of the matter may also be taken note of by the concerned
authorities while considering a request made by a convict for financial
assistance for the purpose of paying compensation to the victim or his
heirs or for paying fine which is payable to the State itself.

30. The upshot of the above discussion is that the provisions of sections
331, 337‑X and 337‑Y, P.P.C. pertaining to the mode of payment and
recovery of Diyat, Arsh and Daman and treatment of the convicts for the
same have been found by this Court to be replete with ambiguities,
unexplainable obscurities and downright absurdities. Articles 4 and 9 of
the Constitution of the Islamic Republic of Pakistan, 1973 enjoin that no
person shall be deprived of his life or liberty save in accordance with
law. These provisions of the Constitution obviously presuppose that a law
affecting life or liberty of a person has to be reasonable, clear, fair and
just. A law governing crime and punishment and dealing with lives and
liberties of citizens cannot be allowed to hold the field if such law is not
only unreasonable, obscure and, at times, absurd but also capable of
working as an engine of unjustifiable oppression. The abovementioned
provisions of the Pakistan Penal Code have, thus, been found by this
Court to be violative of the Fundamental Rights guaranteed by Articles 9
and 14 of the Constitution regarding life and liberty of citizens and
dignity of man besides being offensive to the provisions of Article 4 of the
Constitution pertaining to life and liberty of citizens. The provisions of
sections 331, 337‑X and 337‑Y, P.P.C. insofar as they prescribe the mode of
payment and recovery of Diyat, Arsh and Daman and treatment of the
convicts for the same are, therefore, declared to be avoid on account of
their inconsistency with the abovementioned Fundamental and
Constitutional Rights.

31. As a consequence of the declaration made above the general ‑law

relating to Diyat, Arsh and Daman contained in the Pakistan Penal Code
shall remain intact but the provisions of sections 331, 337‑X and 337‑Y,
P.P.C. insofar as they prescribe the mode of payment and recovery of
Diyat, Arsh and Daman and treatment of the convicts for the same shall
forthwith cease to exist. In the case of Muhammad Kamal v. The State
(1998'PCr.LJ 1781) the Hon'ble Peshawar High Court had made a
recommendation to the Federal Ministry of Law to remove the anomalies
and confusions created by the said provisions and on 27‑11‑2000, while
deciding a Constitutional petition of one Muhammad Amjid under Article
184(3) of the Constitution, the Hon'ble Supreme Court of Pakistan had
suggested to the Federal Government to refer the matter of these
provisions to the Council of Islamic Ideology to find a solution to the
problems created by these provisions. Unfortunately despite such highest
judicial. recognition of the obscurities in the said provision of the
Pakistan Penal Code the recommendations made by Hon'ble Peshawar
High Court in the year 1998 and by the Hon'ble Supreme Court of
Pakistan in the year 2000 have not been attended to so far either by the
Federal Government or by the Council of Islamic ideology and nothing
has been done to date to solve the problems created by the said
provisions. The Federal Government has even failed to frame the Rules in
this regard contemplated by section 338‑G, P.P.C. so as to inject some
rationality into the relevant provisions. In this backdrop of apathy on the
part of the concerned quarters this Court cannot leave the affected
citizens in the lurch and allow them to keep on suffering on the basis of
laws which are themselves defective. I am conscious that the declaration
made by this Court in the preceding paragraph may create a vacuum in
the Pakistan Penal Code regarding the mode of payment and recovery of
Diyat, Arsh and Daman and treatment of the convicts for the same but
such a vacuum is quite capable of being adequately filled by the
provisions of section 544‑A, Cr.P.C. which not only deal with similar
matters but the same are quite just, fair and reasonable besides being in
accord with the remaining body of laws dealing with similar matters. In
the case of Maqsood v. Ali Muhammad and another (1971 SCMR 657) the
Hon'ble Supreme Court of Pakistan had held that if a statute contains two
provisions dealing with somewhat similar situations then the Court can
usefully utilize and apply the principles contained in one such provision
while dealing with the other. The Pakistan Penal Code and the Code of
Criminal Procedure are even otherwise statutes which complement and
supplement each other in most respects and are generally perceived as
counterparts in our system of criminal justice. Thus, if we have a
makeshift substitute available in the Code of Criminal Procedure for the
provisions of the Pakistan Penal Code struck down by this judgment then
I see no reason why the said substitute available in the Code of Criminal
Procedure may not be utilized for temporarily filling up the vacuum. It is,
therefore, declared that till such time the relevant Legislature enacts any
provision or provisions to substitute for the provisions of the Pakistan
Penal Code struck down by this Court through the present judgment
matters regarding the mode of payment and recovery of Diyat, Arsh and
Daman and treatment of the convicts for the same shall be dealt with had
handled by the concerned Courts and‑ authorities in accordance with the
provisions of section 544‑A, Cr.P.C. with necessary adaptations, if
required.

32. As a necessary corollary to and consequence of what has been held I

above and keeping in view the provisions of section 544‑A, Cr.P.C., which
IL contemplate a maximum period of 6 months' imprisonment in case of
a convict's failure to pay compensation to the victim or his heirs, it is
directed that all those convicts who are at present being detained in
prisons in the Province of the Punjab only on account of their failure to
pay Diyat, Arsh and Daman shall be immediately released from prisons if
they have already undergone imprisonment for a period of six months
on account of non payment of Diyat, Arsh or Daman. The other convicts
in poisons placed in a similar situation shall also be dealt with
accordingly upon maturity of their cases for such release. It is, however,
clarified that, in view of the provisions of section 544‑A, Cr.P.C., despite
their release from prisons the liability of these convicts regarding
payment of Diyat, Arsh and Daman shall remain intact and the amount
due from them shall be recoverable from them as arrears of land
revenue. It is further clarified that at any stage of the matter destitute
convicts shall be entitled to apply before the concerned authorities for
assistance for the Zakat Fund or Bait‑ul‑Mal towards payment of Diyat,
Arsh and Daman or fine and the concerned authorities shall be obliged to
consider and take decision on all such requests in accordance with the
relevant law and procedure.
33. All the points formulated by this Court in its order dated 16‑4‑2002
and both these petitions are decided in the terms detailed above. There
shall be no order as to costs.

34. The Office of this Court is directed to send copies of this judgment to
the Superintendents of all the Prisons in the Province of the Punjab for
immediate compliance and implementation of this judgment. The Office
shall also send copies of this judgment to the Federal and Provincial
Secretaries of the respective Law Department, the Provincial Home
Department and all the District and Sessions Judges in every District of
the Province of the Punjab who shall supply a copy of this judgment to all
the Presiding Officers of all the Criminal Courts in their respective
Districts for their information.

35. Before patting with this judgment I must place on record my

appreciation of the selfless and public spirit in which these petitions have
been filed and vigorously pursued by Mr. M.D. Tahir, Advocate, the hard
work undertaken and the valuable assistance rendered by the learned
amicus curiae namely Syed Afzal Haider, Dr. Riaz‑ul‑Hassan Gilani, Syed
Shabbar Raza Rizvi and Mr. Umar Ata Bandial, Advocates and the labour
put in by Kh. Saeed‑uz‑Zafar, the learned Deputy Attorney‑General, and
Mr. Ishfaq Ahmad Chaudhry, Advocate, the learned Law Officer
appearing on behalf of the Advocate‑General, Punjab.

M.B.A./A‑301/L Order accordingly.

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